doc1013 motion to settle with olshan frome wolosky llp fka olshan grundman frome rozenwieg &...

_____________________________________________________________________________________________ MOTION FOR ORDER APPROVING COMPROMISE AND SETTLEMENT AGREEMENT BETWEEN THE TRUSTEE AND OLSHAN FROME WOLOSKY LLP AND DAVID ADLER #4837-3769-0139

Peter Franklin State Bar No. 07378000 Doug Skierski State Bar No. 24008046 FRANKLIN CHAPMAN SKIERSKI HAYWARD, LLP 10501 N. Central Expressway, Suite 106 Dallas, Texas 75231 Telephone: (972) 755-7100 Facsimile: (972) 755-7110 Counsel for Matthew D. Orwig, Chapter 11 Trustee and Liquidating Trustee

Jeffrey M. Tillotson, P.C. State Bar No. 20039200 Eric W. Pinker, P.C. State Bar No. 16016550 John Volney State Bar No. 24003118 LYNN TILLOTSON PINKER & COX, L.L.P. 2100 Ross Avenue, Suite 2700 Dallas, Texas 75201 Telephone: (214) 981-3800 Facsimile: (214) 981-3839 Counsel for Matthew D. Orwig, Chapter 11 Trustee and Liquidating Trustee

IN THE UNITED STATES BANKRUPTCY COURT

FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION

In re: § § FIRSTPLUS FINANCIAL GROUP, INC., § Case No. 09-33918-hdh-11 Debtor, § Chapter 11 § ______________________________________________________________________________

MOTION FOR ORDER APPROVING COMPROMISE AND SETTLEMENT AGREEMENT BETWEEN THE TRUSTEE AND

OLSHAN FROME WOLOSKY LLP AND DAVID ADLER ______________________________________________________________________________

NO HEARING WILL BE CONDUCTED ON THIS MOTION UNLESS A WRITTEN OBJECTION IS FILED WITH THE CLERK OF THE UNITED STATES BANKRUPTCY COURT AT 1100 COMMERCE STREET, ROOM 1254, DALLAS, TEXAS 75242-1496 BEFORE CLOSE OF BUSINESS ON JUNE 23, 2014, WHICH IS AT LEAST 24 DAYS FROM THE DATE OF SERVICE HEREOF. ANY RESPONSE SHALL BE IN WRITING AND FILED WITH THE CLERK, AND A COPY SHALL BE SERVED UPON COUNSEL FOR THE MOVING PARTY PRIOR TO THE DATE AND TIME SET FORTH HEREIN. IF A RESPONSE IS FILED A HEARING MAY BE HELD WITH NOTICE ONLY TO THE OBJECTING PARTY. IF NO HEARING ON SUCH NOTICE OR MOTION IS TIMELY REQUESTED, THE RELIEF REQUESTED SHALL BE DEEMED TO BE UNOPPOSED, AND THE COURT MAY ENTER AN ORDER GRANTING THE RELIEF SOUGHT OR THE NOTICED ACTION MAY BE TAKEN.

Case 09-33918-hdh11 Doc 1013 Filed 05/28/14 Entered 05/28/14 18:34:45 Page 1 of 23


TO THE HONORABLE HARLIN D. HALE, UNITED STATES BANKRUPTCY JUDGE:

COMES NOW Matthew D. Orwig, the duly-appointed Chapter 11 Trustee and

Liquidating Trustee of the FirstPlus Financial Group, Inc. bankruptcy estate (the “Trustee”)

seeking this Court’s approval for the settlement and compromise of controversies between the

Trustee and Olshan Frome Wolosky LLP f/k/a Olshan Grundman Frome Rozenzwieg &

Wolosky LLP (“Olshan”) and David Adler (“Adler”) (collectively, the “Parties”). In support of

this motion, which is made pursuant to Bankruptcy Rule 9019, the Trustee would show the Court

the following:

JURISDICTION AND VENUE

1. This Court has jurisdiction over the subject matter of this Motion pursuant to 28

U.S.C. §1334(b) and the standing order of reference of the District Court. This matter is a core

proceeding. 28 U.S.C. §157(b)(1), (b)(2)(O).

2. Venue in this Court is proper under 28 U.S.C. §1408 and 1409.

BACKGROUND FACTS

3. The Debtor filed for relief under Chapter 11 of the United States Bankruptcy

Code on June 23, 2009. The Trustee was appointed on July 24, 2009.

4. No creditors’ committee was appointed in this case by the United States Trustee.

5. As alleged in the Trustee’s First Amended Complaint in the adversary proceeding

styled Orwig v. Freeman, et al., Adversary No. 11-03397-hdh, pending in this Court (the

“Adversary Proceeding”), the Trustee sued Olshan and Adler for alleged legal malpractice,

aiding and abetting, breach of fiduciary duty, and civil conspiracy in connection with certain

legal services performed by Olshan and Adler.



6. The Trustee and Olshan and Adler have agreed upon terms for settlement of the

Adversary Proceeding. A copy of the Compromise and Settlement Agreement (the

“Agreement”) is attached to this motion as Exhibit A, and is incorporated herein by reference.

The Agreement provides that Olshan and Adler will pay the FPFG Liquidating Trustee

$3,000,000.00 to settle the controversies between Trustee and Olshan and Adler. The

Agreement provides for a full release of any and all pre- and post-petition claims and causes of

action between the Parties (and Olshan and Adler deny all liability in connection with the

settlement).

7. Because the controversies between the Parties involve issues that would likely

take substantial time and money to resolve, the Trustee has concluded that the interests of the

estate are better served by entering into the attached Agreement, which provides substantial

consideration to the Liquidating Trust. The Trustee requests approval to enter into the

Agreement as follows.

BASIS FOR RELIEF REQUESTED

8. In deciding whether to approve a proposed settlement agreement or compromise

of controversy, a bankruptcy court should consider the following factors:

a. the probability of success on the merits and the resolution of the dispute; b. the complexity of the litigation being settled; c. the expense, inconvenience and delay associated with litigating the dispute; and d. the paramount interests of creditors.

Texas Extrusion Corp. v. Lockheed Corp. (In re Texas Extrusion Corp.), 844 F.2d 1142, 1158-59

(5th Cir. 1988), cert denied, 105 S. Ct. 31 (1989); United States v. Aweco, Inc. (In re Aweco,

Inc.), 752 F.2d 293, 298 (5th Cir. 1984), cert. denied, 469 U.S. 880 (1984).



9. While it is necessary for the proponent of a compromise to set forth the factual

and legal basis for the compromise so the court can make an intelligent and informed evaluation

of the proposed settlement, it is not incumbent upon the proponent to present a mini-trial or a full

evidentiary hearing. Texas Extrusion, 844 F.2d at 1158-59; Aweco, 725 F.2d at 298.

10. The Agreement is in the best interests of the Debtor’s bankruptcy estate and

should be approved. The Settlement provides for substantial consideration of $3,000,000.00 to

be paid to the FPFG Liquidating Trust by Olshan and Adler. While the Trustee believes that he

has strong tort claims against Olshan and Adler, those claims would be complicated, time-

consuming, and expensive to resolve in a contested proceeding. For its part, Olshan and Adler

contend that they have strong factual and legal defenses to the Trustee’s claims, which would

further add to the cost of prosecuting the Trustee’s claims. Accordingly, the Trustee requests

that the Court grant this motion and approve the Agreement.

WHEREFORE, the Trustee respectfully requests that this Court find that service on the

attached service list is proper and that the Agreement incorporated as Exhibit A is in the best

interest of the Debtor’s estate and approve of the Agreement between the Trustee and Olshan

Frome Wolosky LLP f/k/a Olshan Grundman Frome Rozenzwieg & Wolosky, LLP and David

Adler.



Dated: May 28, 2014 Respectfully submitted,

/s/ John Volney Peter Franklin ([email protected]) State Bar No. 07378000 Doug Skierski ([email protected]) State Bar No. 24008046 FRANKLIN CHAPMAN SKIERSKI HAYWARD, LLP 10501 N. Central Expressway, Suite 106 Dallas, Texas 75231 Telephone: (972) 755-7100 Facsimile: (972) 755-7110 and Jeffrey M. Tillotson, P.C. ([email protected]) State Bar No. 20039200 Eric W. Pinker, P.C. ([email protected]) State Bar No. 16016550 John Volney ([email protected] State Bar No. 24003118 LYNN TILLOTSON PINKER & COX, L.L.P. 2100 Ross Avenue, Suite 2700 Dallas, Texas 75201 Telephone: (214) 981-3800 Facsimile: (214) 981-3839 COUNSEL FOR MATTHEW D. ORWIG, CHAPTER 11 TRUSTEE AND LIQUIDATING TRUSTEE


mailto:[email protected]






CERTIFICATE OF SERVICE

The undersigned hereby certifies that a true and correct copy of the above and foregoing document has been served via ECF on counsel of record on May 28, 2014, and via United States Mail, as shown below: Via CMRRR #7011 3500 0001 4922 1336 David A. Roberts (Pro Se) 325 West End Avenue, Apt. 11D New York, NY 10023 (212) 918-4571 Telephone [email protected] Via CMRRR #7011 3500 0001 4922 1565 Nicodemo S. Scarfo, Jr. (Pro Se) 129 Kensington Drive Galloway, NJ 08205 [email protected] Via CMRRR #7011 3500 0001 4922 1589 Nicodemo S. Scarfo, Jr. (Pro Se) #01381-748 FDC Philadelphia P.O. Box 562 Philadelphia, PA 19105

Via CMRRR #7011 3500 0001 4922 1558 Seven Hills Management, LLC c/o Salvatore Pelullo as VP of Operations Federal Detention Center Inmate Number 52619-066 P.O. Box 562 Philadelphia, PA 19105 Via CMRRR #7011 3500 0001 4922 1572 Salvatore Pelullo c/o Troy A. Archie, Esq. AFONSO BAKER & ARCHIE, PC 21 Route 130 South Cinnaminson, NJ 08077 856-786-7000 Telephone 856-385-8181 Facsimile [email protected]

/s/ John Volney John Volney





_____________________________________________________________________________________________ COMPROMISE SETTLEMENT AGREEMENT AND RELEASE Page 1 of 17

COMPROMISE SETTLEMENT AGREEMENT AND RELEASE

The above-numbered and styled cause of action having been compromised and settled, as

between Matthew D. Orwig as Chapter 11 Trustee and Liquidating Trustee for First Plus

Financial Group, Inc. (the “Trustee”) and the Settling Defendants (as defined below), the Settling

Parties (as defined below) now enter into the following Compromise Settlement Agreement and

Release (the “Agreement”), with the Trustee acting on behalf of FirstPlus Financial Group, Inc.

First Plus”), FirstPlus’ Chapter 11 estate (the ‘‘Estate”), the FPFG Liquidating Trust (the

“Liquidating Trust”) and the other Releasors (as defined below):

I. Definitions

As used in this Agreement, the following terms will have the following meanings:

1. “Releasors” shall include the Trustee, the Estate, The Liquidating Trust and

FirstPlus and each of the foregoing’s respective predecessors and successors in interest, agents,

servants, legal representatives, attorneys, insurers, partners, spouses, heirs, executors,

administrators, estates, employees, associates, successors, assigns, affiliates, subsidiaries,

shareholders and/or any other person or entity claiming or that could claim by, through or under

them. In addition, the “Releasors” also includes any predecessor or successor bankruptcy

trustees of FirstPlus (including any hereafter appointed Chapter 7 trustee) and their respective

agents, partners, employees, associates, successors, assigns and any other person or entity

claiming or that could claim by, through or under them.

2. “Settling Defendants” shall include Olshan Frome Wolosky LLP f/k/a Olshan

Grundman Frome Rozenzwieg & Wolosky, LLP (“Olshan”) and David Adler (“Adler”) and each

of their respective predecessor or successor entities, affiliates, subsidiaries and parent

corporations, and their respective past, present or future officers, directors, agents, stockholders,

Case 09-33918-hdh11 Doc 1013 Filed 05/28/14 Entered 05/28/14 18:34:45 of 23

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partners, predecessors and successors in interest, servants, legal representatives, employees,

attorneys, heirs and assigns, including but not limited to William D. Cobb, Jr., Carrie Johnson

Phaneuf, Matthew Last, Cobb Martinez Woodward PLLC, Paul Koning, and Koning Rubarts

LLP, and any of their employees, agents or representatives. “Settling Defendants” also includes

Olshan and Adler’s insurers, including but not limited to Columbia Casualty Company, Axis

Surplus Insurance Company, and Interstate Fire & Casualty Company, and any of their past,

present, or future employees, agents, representatives, predecessor or successor entities, affiliates,

subsidiaries and parent corporations, officers, directors, stockholders, partners, predecessors and

successors in interest, servants, legal representatives, attorneys, heirs and assigns, and all other

persons, firms or corporations with whom any of the former have been, are now, or may

hereafter be affiliated. ‘“Settling Defendants” does not include any defendant named in the

caption of the First Amended Complaint other than Olshan and Adler.

3. “Incident” shall mean any and all facts and circumstances relating to or arising

out of the alleged losses or damages to Releasors caused by the alleged actions or omissions of

any of the Settling Defendants including, but not limited to, (a) the allegations contained in the

Complaint, including any amendments thereof or supplements thereto, filed in Adversary

No. 11-03397, styled Matthew D. Orwig, As Chapter 11 Trustee of FirstPlus Financial Group,

Inc. v. Robert Freeman, et al., in the United States District Court for the Northern District of

Texas, Dallas Division (The “Adversary Proceeding”), (b) the allegations contained in the

Indictment, including any amendments thereof or supplements thereto, filed in Criminal Cause

No. 11-740 (RBK), styled United States of America v. Nicodemo S. Scarfo, et al., in the United

States District Court of New Jersey (the “Criminal Case”), (c) any matters relating in any way to

the Chapter 11 Case No. 09-33918-hdh 11, styled In re: FirstPlus Financial Group, Inc., in the



United States Bankruptcy Court for the Northern District of Texas, Dallas Division, including

any conversion thereof (the “Bankruptcy Case”), and (d) any other allegations or claims related

to or involving the same or similar facts and circumstances alleged in the Adversary Proceeding

and/or the Criminal Case.

4. “Settling Parties” shall mean Releasors and Settling Defendants and a reference to

a “Party” shall refer to the Releasors or the Settling Defendants as the circumstances warrant.

5. “Lawsuits” shall mean the Adversary Proceeding, the Criminal Case and the

Bankruptcy Case.

6. “Claims” shall include any and all past, present and future claims, debts,

demands, actions, causes of action, suits, sums of money, contracts, agreements, judgments,

obligations, wrongful death claims, rights, damages, costs, losses of services, expenses,

compensations and liabilities of any nature whatsoever, both in law and in equity, whether based

on a tort, fraud, contract, violations of federal or state laws (or other laws), claims that could be

asserted under the Bankruptcy Code (including, without limitation, causes of action under

Chapter 5 of the Bankruptcy Code), or any other theory of recovery, which any of the Releasors

now have, or which may hereafter accrue or otherwise be acquired, including but not limited to

those on account of, or may in any way grow out of, or which are the subject of the Lawsuits,

including any and all known or unknown claims for lost value of FirstPlus, takeover FirstPlus,

insider transactions, concealment of insider transactions and suspicious transactions, suspicious

cash management practices, improper accounting, improper loans, breach of fiduciary duty, legal

malpractice, professional negligence, fraud, negligent misrepresentation, aiding and abetting,

civil conspiracy, fraudulent transfers, equitable subordination, avoidance of preferential

transfers, disallowance of claims, objections to proofs of claim, recharacterization of loans,



fraudulent concealment, damages for breach of fiduciary duty, damages for fraud, damages for

any type of negligence, exemplary and punitive damages, restitution, pre-and post-judgment

interest, costs, attorney fees, or any future claim of same, which have resulted or may have

resulted from the alleged acts or omissions of the Settling Defendants. “Claims” shall also

include, without limitation, any claims which were brought or could have been brought relating

to the Incident or in the Lawsuits under any theory including but not limited to claims for breach

of implied warranty, gross negligence, Texas Deceptive Trade Practice-Consumer Protection

Act, products liability, negligence, contribution, express warranty, breach of contract, indemnity,

fraudulent misrepresentation, negligent misrepresentation, vicarious liability, Res Ipsa Loquitur,

exemplary damages, breach of fiduciary duty, and damages for lost profits, lost income, lost

value, loss of credit reputation, loss of benefit of the bargain, loss of amounts paid as guarantor,

mental anguish in the past, present and/or future, pain and suffering in the past, present and/or

future, personal injuries of any kind, past, present and/or future, attorney’s fees, interest of any

kind, including prejudgment interest and post-judgment interest, costs of suit, loss of inheritance,

loss of consortium, loss of support, pecuniary loss, loss of society, penalties of any kind, punitive

damages, exemplary damages or any other damage or claim of any kind or character whatsoever

sustained, directly or indirectly, which in any way relates to, arises out of, or is in any way

connected with the Incident or the Lawsuits. Claims shall not include any claims, both in law and

in equity, which may be brought arising out of the Settling Parties’ breach of this Agreement.

II. Choice of Law

1. The Settling Parties represent and agree that the terms of this Agreement are to be

governed by and construed in accordance with the laws of the State of Texas in all respects,



including matters of construction, interpretation, enforcement and validity. Venue of any

litigation concerning this Agreement shall be in Dallas County, Texas.

2. As further consideration for this Agreement, in the event this Agreement is not

approved by the Court in the Adversary Proceeding, the Settling Defendants expressly reserve

the right to assert that New York law is applicable to the claims against them in the Adversary

Proceeding and the Releasors agree that this Agreement shall not provide the basis for the

application of Texas law to any claims against any of the Settling Defendants, nor shall it be

construed to mean that the Settling Defendants have waived any arguments for the application of

New York law in the Adversary Proceeding, or any other proceeding.

III. Payment, Releases, and Contribution

1. For and in consideration of THREE MILLION DOLLARS ($3,000,000.00), the

mutual covenants contained herein, and other good and valuable consideration, Releasors do

hereby fully and completely compromise, settle, and forever discharge each and all of the

Settling Defendants of and from all Claims which they now have or may hereafter have against

the Settling Defendants, for or by reason of any matter, cause or thing whatsoever, whether

known or unknown, suspected or unsuspected, liquidated or unliquidated, matured or unmatured,

foreseen or unforeseen, now existing or hereafter arising, in law, equity or otherwise that are

based in whole or part on any act, omission, transaction, event or other occurrence taking place

from the beginning of the world through the Approval Date (as defined below).

2. For and in consideration of the releases and mutual covenants contained herein,

and other good and valuable consideration, the Settling Defendants do hereby fully and

completely compromise, settle, and forever discharge each and all Releasors of and from all

Claims which they now have or may hereafter have against the Releasors, for or by reason of any



matter, cause or thing whatsoever, whether known or unknown, suspected or unsuspected,

liquidated or unliquidated, matured or unmatured, foreseen or unforeseen, now existing or

hereafter arising, in law, equity or otherwise that are based in whole or part on any act, omission,

transaction, event or other occurrence taking place from the beginning of the world through the

Approval Date (as defined below).

3. The THREE MILLION DOLLARS ($3,000,000.00) will be paid by the Settling

Defendants to Releasors by check made payable to ‘‘FPFG Liquidating Trust,” in accordance

with instructions from Releasors, and within fifteen (15) days after the Approval Date (as

defined below).

4. The releases described in Paragraph No. 1 in this Section III and this Agreement

do not, nor are they intended to, release any other defendant(s), not specifically defined herein as

a Settling Defendant, from any Claims. Releasors reserve the right to continue to assert and

pursue claims against any other person or entity which may be responsible for the injuries and

damages allegedly sustained by Releasors, together with the right to make the claim that such

other persons and entities, and not the Settling Defendants, are solely liable to Releasors for any

injuries, losses and damages.

5. It is intended by the choice of Texas law by the Settling Parties in Section II that

Tex. Civ. Prac. & Rem. Code § 33.015(d) will be applicable to the Settling Parties and any

claims for contribution against any of the Settling Parties. More specifically, the Settling Parties

acknowledge and agree that upon execution of this Agreement, under Tex. Civ. Prac. & Rem.

Code § 33.015(d), no defendant has a right of contribution against any of the Settling

Defendants.



6. However, acknowledging that choice of law has been at issue between

the Settling Parties and in the Adversary Proceeding, should it later be determined that New

York law or some other law other than Texas law is applicable to any claims for contribution

against the Settling Parties, it is further agreed that, in the event that any of the Settling

Defendants are found by judicial determination to be joint tortfeasors or otherwise jointly or

severally liable with any person or entity in causing injury or damage to any of the Releasors,

Releasors hereby release that pro-rata portion or share of the cause of action which any of the

Releasors have against the Settling Defendants and discharge any and all damages attributable to

the Settling Defendants in such causes of action, without in any way discharging or releasing the

portion of the cause of action attributable to any other party who has caused injury to any of the

Releasors herein. The Releasors do hereby credit and satisfy that portion of the total amount of

damages to the Releasors which has been caused by the negligence, intentional torts and/or other

fault, if any, of the Settling Defendants as hereinafter may be judicially determined in the future

trial, and Releasors do hereby release and discharge that fraction, portion and percentage of their

total causes of action and claims for damages against the Settling Defendants which shall

hereinafter, by future trial be judicially determined to be the sum of that portion, fraction or

percentage of causal negligence and/or fault as determined pursuant to applicable law, for which

the Settling Defendants are found to be liable.

IV. Dismissal of Case with Prejudice Against Settling Defendants and Approval of the Settlement by the Court

1. For the aforesaid consideration, Releasors, joined by their attorney, hereby agree

on behalf of themselves and their respective assigns, never again to bring suit in any court

against Settling Defendants with respect to any Claim, including a Claim with respect to the

subject matter or the allegations which were asserted, or could have been asserted, in or relating



to the Incident and/or the Lawsuits. The Releasors agree that the Settling Defendants shall be

dismissed with prejudice from the Adversary Proceeding within three business days from the

receipt of the settlement funds by the Releasors.

2. The Settling Parties further agree that to be effective, this settlement must be

approved by the Court in the Adversary Proceeding in accordance with Rule 9019 of the Federal

Rules of Bankruptcy Procedure (the date on which the same occurs shall be referred to herein as

the “Approval Date”). The form of the Motion to Approve Compromise and Proposed Order will

be in the form attached as Exhibit “A” (the “Motion”). The Trustee will file the Motion seeking

Bankruptcy Court approval of this Agreement by no later than May 28, 2014.

V. Denial of Liability

The Releasors acknowledge that the Settling Defendants have denied and continue to

deny all allegations made in connection with the Lawsuits, and that the settlement of the

Adversary Proceeding as to the Settling Defendants, the payment of the above-described sums,

and any other actions taken by the Settling Defendants in connection therewith shall not be

deemed to be, or construed as, an admission of liability of the Settling Defendants or an

admission of the truthfulness of any of the allegations made by any party to the Lawsuits or

otherwise in connection with the Incident or any matter whatsoever. Rather, the Releasors

acknowledge that said actions have been taken in order to avoid the expense and inconvenience

of further prosecution of the Adversary Proceeding and acknowledge that this settlement and

compromise is of a doubtful and disputed claim, and that the payment of the above-described

sums is not to be construed as an admission of liability on the part of the Settling Defendants, by

whom liability is expressly denied. The Settling Parties expressly agree that this Agreement was

contemplated and executed as a compromise of disputed claims within the meaning of Federal



Rule of Evidence 408. As such, it is not admissible in any proceeding either to prove or disprove

the validity or amount of a disputed claim, or to impeach by a prior inconsistent statement or a

contradiction.

VI. Representations and Warranties

1. Releasors warrant that they are not aware of any claim by or on behalf of the

Releasors against the Settling Defendants that is not being released and/or indemnified by this

Agreement.

2. Releasors represent that they are the sole owner of the Claims being released

herein, and that they have not transferred, assigned, subrogated or otherwise incumbered said

Claims or any part thereof.

3. Releasors represent and warrant that they have made a full and complete

investigation, aided by their attorneys, of the circumstances surrounding the Incident, the

Lawsuits and this Agreement.

4. Releasors further expressly release and waive any and all Claims for damages

which exist as of the Approval Date against the Settling Defendants but of which any of the

Releasors do not know or suspect to exist, whether through ignorance, oversight, error, fraud,

misrepresentation or negligence, which, if known, would materially affect their decision to enter

into this Agreement. Releasors further agree that they will accept the consideration specified

herein as a complete compromise of matters relating to the Settling Defendants which involve

disputed issues of law and fact and fully assume the risk that the facts or law applicable to this

case may be otherwise than they believe or may materially change at some point in the future. It

is the intent of the Releasors to release all Claims against the Settling Defendants associated with



the Incident and the Lawsuits or otherwise, whether those Claims are known at the present time

or not.

5. Releasors further state that they understand this to be a full, final and complete

settlement with the Settling Defendants and one that cannot be reopened at any time in the future

regardless of what might take place or later occur.

6. In making this Agreement, Releasors warrant that they have not relied upon any

statements or representations pertaining to this matter made by the Settling Defendants or by any

person or persons representing them, other than as set forth in this Agreement.

7. Releasors further state that they have carefully read this Agreement, completely

understand the contents thereof, that they conferred fully with their attorneys concerning the

contents and legal consequences of this Agreement, and they executed this Agreement of their

own free will. The Releasors have relied upon the advice of their attorneys, who are attorneys of

their own choice, concerning the legal and income tax consequences of this Agreement; that the

terms of this Agreement have been completely read and explained to the Releasors by their

attorneys; and the terms of this Agreement are fully understood and voluntarily accepted by the

Releasors.

8. This Agreement contains the entire agreement between the Settling Parties with

regard to the matters set forth herein and shall be binding upon and inure to the benefit of the

executors, administrators, personal representatives, heirs, successors and assigns of each.

VII. Assignment of Outstanding Claims

Any and all claims against the Settling Defendants not specifically released herein, if any,

which are related to or arise out of the Incident, are hereby assigned in full to the Settling

Defendants.



VIII. Severability

If any portion of this Agreement should be held by any court of competent jurisdiction to

be invalid or unenforceable for any reason, the balance of this Agreement shall remain in full

force and effect.

IX. Authority

1. The Settling Parties represent and warrant that each individual signing this

agreement on their behalf has complete and full authority to act upon the Settling Parties’ behalf

and has the authority to bind the Settling Parties (the Releasors with respect to the Trustee and

the Settling Defendants with respect to Olshan and Adler) regarding all of the provisions of this

Agreement.

2. This Agreement contains the entire agreement between the parties hereto, and the

terms of this Agreement are contractual and not mere recitals.

X. Confidentiality

Other than disclosure of this Settlement Agreement to the Bankruptcy Court as set forth

in Section IV, ¶ 2 above, this settlement and its terms shall be held confidential and shall not be

divulged or disseminated to anyone who is not a Party to this Agreement.

XI. Supplementary Documents

The Settling Parties do further agree to execute any and all documents that may be

required to effectuate all terms, covenants and conditions contained herein contemporaneously

with such Party’s execution of this Agreement or at a later date if necessary.

XII. No Third-Party Beneficiary

This Agreement has been executed for the sole benefit of the Settling Parties hereto and

is not intended for the benefit of any third-party. No third-party shall have any rights hereunder,



nor shall be entitled to assume that the Settling Parties hereto will insist upon strict performance

of the mutual obligations arising under this Agreement for the benefit of such other parties or

otherwise. The Settling Parties to this Agreement further agree that they will not institute,

maintain, assist in, or otherwise encourage any suit, action, or other proceeding, at law, in equity

or otherwise against the other Party nor aid any third-party in any way in any such proceeding.

XIII. Discovery of Additional Facts

In connection with this Agreement, the Settling Parties each acknowledge that additional

facts might be discovered later, but that it is the intention of each Party to fully, finally and

forever settle and release all matters of the Lawsuits between the Settling Parties, known or

unknown, suspected or unsuspected, which now exist, or formerly have existed between the

Settling Parties, except as is expressly provided in this Agreement. The Settling Parties

acknowledge that this Agreement shall be and will remain in effect as a full and complete

general release of the Adversary Proceeding against the Settling Defendants, notwithstanding the

discovery or existence of any additional or different facts, except as is expressly provided in this

Agreement.

XIV. Additional Terms

This Agreement shall become effective upon approval by the Court in accordance with

Rule 9019 of the Federal Rules of Bankruptcy Procedure. The parties agree that there are no

other contingencies affecting the enforceability of this Agreement.



WITNESS MY HAND this _____ day of _______________, 2014.

MATTHEW D. ORWIG, AS CHAPTER 11 TRUSTEE AND LIQUIDATING TRUSTEE OF FIRSTPLUS FINANCIAL GROUP, INC.

STATE OF TEXAS §

§ COUNTY OF DALLAS §

BEFORE ME, the undersigned authority, on this day personally appeared MATTHEW D. ORWIG, known to me to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that he is authorized to execute this document as CHAPTER 11 TRUSTEE AND LIQUIDATING TRUSTEE OF FIRSTPLUS FINANCIAL GROUP, INC. and has read the foregoing and fully understands it to be a complete release of all claims as described therein, and an agreement of indemnity as described therein and that he executed same for the purposes and consideration expressed therein. GIVEN UNDER MY HAND AND SEAL OF OFFICE this _____ day of _______________, 2014.

Notary Public in and for the State of Texas My Commission Expires:

SEAL:




DAVID ADLER

STATE OF __________ §

§ COUNTY OF __________ §

BEFORE ME, the undersigned authority, on this day personally appeared DAVID ADLER, known to me to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that he has read the foregoing and fully understands it to be a complete release of all claims as described therein, and an agreement of indemnity as described therein and that he executed same for the purposes and consideration expressed therein. GIVEN UNDER MY HAND AND SEAL OF OFFICE this _____ day of _______________, 2014.

Notary Public in and for the State of _____ My Commission Expires:

SEAL:




_______________, ON BEHALF OF SETTLING DEFENDANT OLSHAN FROME WOLOSKY LLP

STATE OF __________ §

§ COUNTY OF __________ §

BEFORE ME, the undersigned authority, on this day personally appeared _______________, known to me to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that he is authorized to execute this document on behalf of OLSHAN FROME WOLOSKY LLP and that he has read the foregoing and fully understands it to be a complete release of all claims as described therein, and an agreement of indemnity as described therein and that he executed same for the purposes and consideration expressed therein. GIVEN UNDER MY HAND AND SEAL OF OFFICE this _____ day of _______________, 2014.

Notary Public in and for the State of _____ My Commission Expires:

SEAL:



AGREED TO FORM AND SUBSTANCE: Jeffrey M. Tillotson, P.C. ([email protected]) Texas Bar No. 20039200 Eric W. Pinker, P.C. ([email protected]) Texas Bar No. 16016550 John Volney ([email protected]) Texas Bar No. 24003118 LYNN TILLOTSON PINKER & COX, L.L.P. 2100 Ross Avenue, Suite 2700 Dallas, Texas 75201 214-981-3800 Telephone 214-981-3839 Facsimile ATTORNEYS FOR MATTHEW D. ORWIG AS CHAPTER 11 TRUSTEE AND LIQUIDATING TRUSTEE FOR FIRST PLUS FINANCIAL GROUP, INC. William D. Cobb, Jr. ([email protected]) Texas Bar No. 04444150 Carrie Johnson Phaneuf ([email protected]) Texas Bar No. 24003790 COBB MARTINEZ WOODWARD 1700 Pacific Avenue, Suite 3100 Dallas, Texas 75201 214-220-5200 Telephone 214-220-5299 Facsimile ATTORNEYS FOR SETTLING DEFENDANT OLSHAN FROME WOLOSKY LLP






Paul Koning ([email protected]) Texas Bar No. 11671300 KONING RUBARTS LLP 1700 Pacific Avenue, Suite 1890 Dallas, Texas 75201 214-751-7900 Telephone 214-751-7888 Facsimile ATTORNEYS FOR SETTLING DEFENDANT DAVID ADLER


1 #4820-8002-2555

IN THE UNITED STATES BANKRUPTCY COURT FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION In re: § Chapter 11 § FIRSTPLUS FINANCIAL GROUP, INC., § Case No. 09-33918-HDH § Debtor. §

ORDER GRANTING MOTION FOR ORDER APPROVING COMPROMISE AND SETTLEMENT AGREEMENT BETWEEN THE TRUSTEE AND

OLSHAN FROME WOLOSKY LLP AND DAVID ADLER Came on for consideration the Motion (the “Motion”) of Matthew D. Orwig, the

Liquidating Trustee (the “Trustee”), seeking this Court’s approval for the settlement and

compromise of controversies between the Trustee and Olshan Frome Wolosky LLP and David

Adler (the “Agreement”). The Court, having considered the Motion, the Agreement, proper

service thereof, and the evidence and arguments presented in support of and in opposition to the

Motion and Agreement finds that the Agreement is in the best interest of the Debtor’s estate.

Case 09-33918-hdh11 Doc 1013-1 Filed 05/28/14 Entered 05/28/14 18:34:45 Page 1 of 2

2 #4820-8002-2555

The Motion is therefore well-taken and shall be, and hereby is, GRANTED as follows. It is

therefore,

ORDERED that the Agreement between the Trustee and Olshan Frome Wolosky LLP

and David Adler is approved in the form described in and attached to the Motion; it is further

ORDERED that the Trustee is authorized to enter into and take any steps necessary to

effectuate and comply with the Agreement.

### END OF ORDER###

Submitted by: John Volney ([email protected]) Texas Bar No. 24003118 LYNN TILLOTSON PINKER & COX, LLP 2100 Ross Avenue, Suite 2700 Dallas, Texas 75201 (214) 981-3800 Telephone (214) 981-3839 Facsimile Counsel for Matthew D. Orwig, the Chapter 11 Trustee and Liquidating Trustee for the Estate of FirstPlus Financial Group, Inc. Peter Franklin ([email protected]) Texas Bar No. 07378000 Doug Skierski ([email protected]) Texas Bar No. 24008046 FRANKLIN CHAPMAN SKIERKSI HAYWARD, LLP 10501 N. Central Expressway, Suite 106 Dallas, Texas 75231 (972) 755-7100 Telephone (972) 755-7110 Facsimile Counsel for Matthew D. Orwig, Liquidating Trustee

Case 09-33918-hdh11 Doc 1013-1 Filed 05/28/14 Entered 05/28/14 18:34:45 Page 2 of 2




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